Custom Urns and Memorials v Integrity Funerals [2014] QCAT 607

CITATION: Custom Urns and Memorials v Integrity Funerals [2014] QCAT 607 PARTIES: Custom Urns and Memorials (Applicant) v Integrity Funerals (Respondent) APPLICATION NUMBER: MCDO190/14 MATTER TYPE: Other minor civil dispute matters HEARING DATE: 17 November 2014 HEARD AT: Beenleigh DECISION OF: Adjudicator Trueman DELIVERED ON: 22 November 2014 DELIVERED AT: Beenleigh ORDERS MADE: 1. THAT the Respondent pay to the Applicant the sum of $895.73 within 14 days. CATCHWORDS: Minor Civil dispute – minor debt – claim for unpaid invoice – whether goods delivered as ordered – whether goods acceptable quality and fit for purpose Queensland Civil and Administrative Tribunal Act 2009 Competition and Consumer Act 2010 APPEARANCES and REPRESENTATION (if any): APPLICANT: Mr Declan Kennedy, Director of Custom Urns and Memorials RESPONDENT: Mr Rowan Steer, Director of Integrity Funerals REASONS FOR DECISION [1] Mr Kennedy of Custom Urns and Memorials made a cremation urn for Integrity Funerals. He said it was made specific to their instructions. He claims that Mr Steer of Integrity Funerals confirmed receipt of the urn -- 1 of 6 -- 2 and provided advice that he has supplied the urn to the customer. Mr Kennedy claims Mr Steer now refuses to pay for the goods as supplied. [2] Mr Steer alleges that the cremation urn was not what his client ordered and they were unhappy with the finished product. He refuses to now pay for the urn. [3] The issue for determination in this case, is whether Mr Kennedy supplied to Mr Steer a product that he ordered. The issue will be, if the product was not as ordered, should Mr Steer be required to pay for it? Legislation [4] The tribunal has jurisdiction to hear and determine minor civil disputes – minor debt matters.1 [5] A minor civil application for a claim to recover a debt or liquidated demand of money must be made by a person to whom the debt is owed or money is payable.2 [6] In a proceeding for a minor civil dispute, the tribunal must make orders that it considers fair and equitable to the parties to the proceeding in order to resolve the dispute and may, if considered appropriate, to make an order dismissing the application.3 The tribunal may make an order requiring a party to the proceeding to pay a stated amount to a stated person. 4 [7] Under the Australian Consumer law, any goods or services provided to a consumer are covered by a consumer guarantee subject to particular terms and conditions.5 [8] Consumer guarantees apply to products whereby they must be of acceptable quality, that is: safe, lasting, with no faults and look acceptable. [9] For the sale of goods, the goods must not just be of acceptable quality, but they must be fit for any disclosed purpose and they must match their description. They must match the sample or demonstration model. [10] For the manufacture of goods, the goods must be of acceptable quality and they must match their description. A warranty may cover any goods that are significantly different from the sample or description or if they are substantially unfit for its common purpose. Applicant’s evidence 1 Queensland Civil and Administrative Tribunal Act 2009 s 11. 2 Ibid s 12(4)(a). 3 Ibid s 13(1). 4 Ibid s 13(2)(a)(i). 5 Valued under $40 000 and bought for personal or household use. -- 2 of 6 -- 3 [11] Mr Kennedy stated that he had enjoyed an 8-year business relationship with Integrity funerals. He said he received an email on 31 March 20146 from Mr Steer requesting a quote for a cremation urn and details regarding time for completion. Mr Kennedy said he responded on 1 April 2014 acknowledging the email and stating he would ‘return a cost and ETA’. [12] Mr Kennedy said that he advised Mr Steer as to the cost of the urn on 2 April 2014 by email. He said he advised that the ‘laser etched urn on one side only including photo would be $795.00 plus GST’. The email provided ‘to allow 14 days for making after proof approval’. [13] Mr Kennedy said Mr Steer emailed him back the same day and approved the urn and costs and invited a proof for the family to approve. [14] Mr Kennedy stated that on 8 April 2014 he provided a proof to Mr Steer. The email attaching the proof stated that ‘due to the quality and deposition of the photo supplied we would strongly recommend the family choose the photo fit type urn opposed to the fully etched type. Please advise’. Mr Kennedy said Mr Steer provided another photo to him by email on the same day for further consideration. The photo was alleged to be ‘more enhanced’ and it stated ‘they want it etched’. Mr Kennedy said he sent the photo to ‘his etcher’ with an undertaking to get back to Mr Steer. [15] Mr Kennedy said on 10 April 2014 he emailed Mr Steer and advised him ‘all good ready to proceed with the laser etched urn. Please allow approx. 2 weeks’. [16] Mr Kennedy said that while there were initial issues with the quality of the photo provided, on 13 May 2014 he emailed Mr Steer7 advising: Hi Row, The urn is made ready to go, I did send an email to you explaining that for the best results we would need to laser etch the image and text onto stainless steel instead of marble facia, if you could let me know if this is suitable we can push the button to proceed. I have attached an example of the laser etched stainless steel. [17] Mr Kennedy stated that he attached a copy of a photo of a stainless steel laser etched fascia8 as an example and he provided a copy of the same sample to the tribunal as evidence. [18] Mr Kennedy said that Mr Steer did not come back to him about the urn and on 19 May 2014 he sent an email to him stating that ‘I haven’t heard back from you… I take it the family has decided not to proceed. If this is the case I will close the file’. [19] Mr Kennedy stated he received an email from Mr Steer on the same day stating ‘proceed as instructed with the silver background and black etching client has advised to proceed today she is not happy as product is not as 6 In a bundle of document marked ‘Exhibit 1’. 7 In a bundle of documents marked ‘Exhibit 1’. 8 In a bundle of documents marked ‘Exhibit 1’. -- 3 of 6 -- 4 she chose but we need the matter solved and need the urn in the next few days’. [20] Mr Kennedy said, based on that email, he manufactured the urn and delivered it himself to Integrity Funerals, handing the urn to “Tracey” at reception. He said he also provided an invoice for the urn and the invoice was dated 27 May 214. He said the invoice was produced the day he delivered the urn. He said that the urn was delivered and Tracey said it ‘looked good’. He said that normally he only delivered urns to customers if they were prepaid, but as he had a good working relationship with Integrity Funerals he allowed them a “7 day account”. [21] Mr Kennedy said he did not hear from Integrity Funerals after he delivered the urn until he chased up the outstanding account some 4 or 5 weeks later. He said he spoke to Tracey about payment and she said that ‘Mr Steer was on holidays and that the urn had been delivered to their customer before payment’ had been made. [22] Mr Kennedy said he understood that it was alleged Mr Steer’s client was not happy with the finished product and wanted to return it, but that it was too late to do anything about it as the ashes had already been placed in the urn. He said he was prepared to remanufacture another urn, but only after full payment of the first one that he had made. [23] Mr Kennedy said that he did not believe that the urn was not made to the client’s specifications and he was at a loss as to why Integrity Funerals delivered the urn to the client if the urn was not to their specifications. Respondent’s Evidence [24] Mr Steer filed a Response on 22 October 2014. He said that the urn was not made to his client’s specifications and he disputed that the urn was delivered on the date suggested by Mr Kennedy. He said he was unhappy that the urn had taken so many months to be made and that his client was very unhappy with the finished product. [25] Mr Steer provided a History of Events statement9 outlining his version of events. [26] Mr Steer said his company always paid their bills on time and that this dispute is about quality of the product and that the product he ordered was not what was delivered. [27] Mr Steer alleged that he ordered a black urn with a silver face. He said he received a chrome silver urn and that his client did not want the urn, and was unhappy with it. [28] Mr Steer said that Mr Kennedy did not offer to help with the urn issue until he was paid for the first urn. He said that he felt he could not demand the 9 Exhibit 2. -- 4 of 6 -- 5 urn back from his client as their deceased family members ashes were already placed in the urn. [29] Mr Steer said he was on leave when the urn was delivered. He did not see the urn. The ashes were placed in the urn and it was wrapped and delivered to his client. He said the client did not see the urn until they got home and unwrapped it. He said they were unhappy with the urn and were refunded their money they paid for the urn in full. [30] Mr Steer said he was unhappy that the urn took over 5 months to manufacture and that he no longer did business with Mr Kennedy. [31] Mr Steer said he ordered the urn from the sample he had in his office which was black marble with silver etching. He said that there were issues with the photos and that he believed there was only ever one urn in discussion. Mr Steer provided copies of emails suggesting that as at June and July 2014 his client was requesting from him as to the whereabouts of the cremation urn. [32] Mr Steer denied Mr Kennedy’s suggestions that there were discussions about a second urn and that the email trail of communications in July and September 2014 related to the same one urn that he had ordered. FINDINGS [33] It is not disputed that Mr Steer’s client expected the cremation urn they wanted and was ordered was to be silver etched on a black marble fascia. [34] The evidence suggests that Mr Kennedy advised Mr Steer on 13 May 2014 that the urn would have to be made from stainless steel and that the etching was to be black. [35] I find that on 13 May 2014 Mr Steers contacted his client and advised that he had been chasing up the urn and he was informed that the urn would be ‘the background of the front of the urn will be silver as in the picture provided… the urn will be etched as requested but I believe the background of the front to be black’. Mr Steer’s client emailed him back regarding the urn and advised ‘I expected a black background and silver etching if this is correct yes’. [36] I find that on 19 May 2014 Mr Steer confirmed with Mr Kennedy that his client was happy for the urn to be manufactured with the changes to urn and etching colour. Mr Steers email states ‘proceed as instructed with silver background and black etching’. [37] I find from the evidence that Mr Steer was confused and confirmed with his client that the urn would be black with silver etching when clearly Mr Kennedy had advised in his email on 13 May 2014 that the urn was to be stainless steel (instead of black marble) and that the etching would be black. I find the sample sent by Mr Kennedy to Mr Steer on the same date provided an example of what the urn would look like. Mr Steer conveyed -- 5 of 6 -- 6 the information to his client and it was approved based on incorrect information. I understand why the client was unhappy with the final result as they expected an urn with a black fascia and silver etching. [38] I find that Mr Kennedy manufactured the urn as he was instructed to do in the email dated 19 May 2014 from Mr Steer on the basis that the urn would have a ‘silver background and black etching’. I agree with Mr Steer that the urn was not what his client ordered or expected but through miscommunication and or a misunderstanding on his part, the urn was the type and colour of urn that Mr Steer ordered from Mr Kennedy on behalf of his client. [39] I find that the goods manufactured and delivered by Mr Kennedy to Mr Steer were delivered as ordered. I find that the goods were of acceptable quality as Mr Steer’s client has possession of, and is continuing to use, the cremation urn. I find that the cremation urn was fit for purpose and that the mere slight colour issue would not render a consumer an entitlement to withhold payment on that sole ground. [40] In the circumstances I find that the fact Mr Steer has reimbursed his client for the funds they paid for the urn and the fact his client was unhappy with the finished product is through no fault of Mr Kennedy. Mr Kennedy should be paid for the urn that he manufactured. The invoice for the urn was for $836.83, together with the cost of the filing fee of $58.90 the total sum is $895.73. I will not allow interest in this matter as the time between issuing the invoice and filing of the claim is a short period of time, the amount involved is minimal. [41] For the reasons I have given and the decision I have reached, the order I propose to make is as follows: 1. THAT the Respondent pay to the Applicant the sum of $895.73 within 14 days. -- 6 of 6 --